Coleman v. Lymus

193 A.D.3d 930

142 N.Y.S.3d 431 (Mem)

In the Matter of Darryl COLEMAN, appellant,

v.Nailah LYMUS, respondent.

2020–02800

Docket No. V–14785–09/17M

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 11, 2021

April 21, 2021

Warren S. Hecht, Forest Hills, NY, for appellant.

Charles Lawson, Brooklyn, NY, for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Louise Feld of counsel), attorney for the child.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Rupert V. Barry, J.), dated March 5, 2020. The order, after a hearing, denied the father's petition to modify an order of custody and parental access of the same court (Robert Mulroy, J.) dated March 2, 2017, so as to award the parties joint physical custody of their child or, in the alternative, to expand his parental access.

ORDERED that the order dated March 5, 2020, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a new hearing, including an in camera interview with the child, to be conducted with all convenient speed, and for a new determination of the father's petition thereafter.

The parties, who were never married to each other, have one child together, who was born in 2007. By order dated March 2, 2017, the parties were awarded joint legal custody of the child, with sole physical custody to the mother and parental access to the father. In August 2017, the father filed a petition to modify the order dated March 2, 2017, so as to award the parties joint physical custody, or, in the alternative, to expand his parental access. After a hearing, the Family Court denied the father's petition. The father appeals.

A modification of a court-ordered custody arrangement must be based upon a showing of a change in circumstances such that the modification is required to protect the best interests of the child (see Matter of Amendola v. Maglione, 189 A.D.3d 1030, 1031, 133 N.Y.S.3d 866 ). A child's changing needs as he or she grows older can sufficiently constitute a change in circumstances (see Ayers v. Babcock, 187 A.D.3d 1179, 131 N.Y.S.3d 234 ).

Here, in light of the evidence presented by the father and assertions of the attorney for the child, the Family Court should not have determined the father's petition without conducting an in...